Monday, July 18, 2011

GPS Tracking of Vehicle Neither a Search nor a Seizure (At Least Not on the Facts of This Case)

Let's suppose police decide to track a suspect by surreptitiously attaching a GPS device to his vehicle. Let's also suppose that the police did not obtain a warrant to conduct this electronic surveillance. Fourth Amendment violation?

Actually, there's no need to suppose such a scenario, because that's what happened in Hernandez. DEA agents in Dallas were investigating Hernandez's brother, Angel, for drug-trafficking. To that end, they slapped a "slap-on tracker"on the underside of Angel's pickup truck. What's a slap-on tracker, you ask?

This unsophisticated battery-operated GPS device . . . was accurate to 50 yards, but could neither relay a precise address nor transmit a signal from an enclosed area like a garage. Instead of a continuous signal, the device emitted a “ping” at intervals ranging from 15 minutes to two hours.

Two days later, the agents intercepted a phone call that tipped them that Hernandez was going to drive Angel's truck to California to pick up some drugs. The tracker then showed the pickup heading westbound. California DEA agents located the truck at a hotel and set up visual surveillance. They saw Hernandez load several packages into the truck. Local police pulled Hernandez over for traffic violations, and a consent search turned up 20 pounds of methamphetamine.

Hernandez moved unsuccessfully to suppress the meth, and appealed.

Hernandez argued that both the placement and the use of the GPS device violated his Fourth Amendment rights. The court first held that he lacked "standing" to challenge the placement of the device, because he lacked a legitimate expectation of privacy in the pickup, which belonged to his brother Angel. (The court added (in dicta?) that even if Hernandez did have standing on that issue, attaching the device was not a Fourth Amendment violation. It was not a search because a car's undercarriage is in public view. And it was not a seizure because the device did not interfere with anyone's possession or use of the truck.) But Hernandez did have standing to challenge the use of the GPS device, because he had permission from Angel to use the truck and therefore lawfully possessed it.

On the substance, the court held that the Government's use of the device to track Hernandez was not a search and therefore not a Fourth Amendment violation. The device here was essentially no different than an electronic beeper, the use of which the Supreme Court held in United States v. Knotts to not constitute a search or seizure. The court noted that the Seventh and Ninth Circuits have also so held. The Eighth Circuit has also approved such use of GPS trackers, at least where the police had a reasonable suspicion of drug activity and the device was installed for a reasonable period of time while the vehicle was in a public place.

The only arguably contrary authority arises from the D.C. Circuit, which concluded that extensive GPS monitoring of a subject’s movements over the course of a month does constitute a search because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” United States v. Maynard, 615 F.3d 544, 560 (D.C. Cir. 2010), cert granted, ____ U.S. ____. Maynard concluded, in other words, that even though GPS monitoring of an individual trip is not a search, the aggregated monitoring of a suspect’s daily comings and goings somehow becomes a search. Regardless of our theoretical concern about continuous GPS monitoring, Maynard is easily distinguished because here, Hernandez’s movements were recorded over a single cross-country trip. He was not subject to continuous, around-the-clock electronic surveillance over the extended period of time that concerned the Maynard court.

Hernandez tried to distinguish Knotts, argued that unlike a beeper, a GPS device provides far more detailed and intrusive tracking data, and doesn't require officers to visually follow the suspect. The court disagreed:

Regardless of what a GPS system could do, this GPS was not much more than a glorified, more efficient beeper. We do not mean to suggest that the government’s use of a top-of-the-line GPS, which Hernandez describes as being capable of continuous, precise surveillance, would constitute a search. But that case is not before us.

Wednesday, July 13, 2011

Circuit Split: Fourth Circuit Holds Government May Not Condition Motion for Third Acceptance Level on Appeal Waiver

As you'll recall, the Fifth Circuit held in United States v. Newson that the Government may refuse to move for the third acceptance level under guideline §3E1.1(b) if a defendant refuses to enter a plea agreement containing an appeal waiver. Agreeing with the Ninth and Tenth Circuits, Newson held that the scope of the Government's discretion in this regard is the same as it is with motions for substantial assistance departures under §5K1.1.

Not so, says the Fourth Circuit in Divens. The text of §3E1.1 and its related commentary differ from that of §5K1.1. The only discretion the Government has under §3E1.1(b) is in determining whether the defendant gave timely notification of his intention to plead guilty, such that it allowed the Government to allocate its resources efficiently and avoid having to prepare for trial. Conditioning a third-level motion on an appeal waiver is verboten.

The opinion notes that the First and Seventh Circuits share the Fifth Circuit's view, making the split at least 5 to 1.

Where Circuit Had Not Yet Addressed Question at Time of Trial, Error Is Neither "Clear" Under Rule 35(a) Nor "Plain" Under Rule 52(b)

Another reason, as if you needed one, to preserve, preserve, preserve error in the district court.

Henderson, who pleaded guilty to being a felon in possession of a firearm, received an upward departure "to ensure that [he] had an opportunity to enroll in the federal Bureau of Prisons drug treatment program[.]" He did not object to his sentence at that time. Eight days later he filed a Rule 35(a) motion to correct his sentence, arguing that the district court violated 18 U.S.C. § 3582(a)'s prohibition on using imprisonment as a means of promoting rehabilitation—the Tapia issue.

The court first addressed whether Henderson's Rule 35(a) motion preserved the error. As relevant here, Rule 35(a) only allows a court to correct an error that is clear. This error wasn't, because at the time a circuit split existed over the Tapia question and the Fifth Circuit hadn't addressed it:

Before Tapia, there was a circuit split on whether a district court can consider a defendant’s rehabilitative needs to lengthen a sentence. Tapia, 2011 WL 2369395, at *3 n.1. Moreover, we have not pronounced on the question. In that situation, when there is no binding precedent on a question on which there is a circuit split, an alleged error is not “clear.” If we had confronted the question, we might have gone either way, so the error would not “almost certainly result in a remand of the case.” The error was not correctable under rule 35(a), and Henderson’s motion failed to preserve the error. We must therefore review for plain error.

If, like me, you thought the Fives had in fact addressed the Tapia issue and held that rehabilitation is a permissible factor in deciding on a term of imprisonment, here's what Henderson says:

In United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), we held only that a court could consider a defendant’s rehabilitative needs when sentencing him to imprisonment upon revocation of supervised release. Our decision in United States v. Lara-Velasquez, 919 F.2d 946, 953-57 (5th Cir. 1990), held only that the court can consider rehabilitative potential as a mitigating factor within an appropriate range of punishment, but not necessarily as a reason for a sentencing enhancement.

Okay, let's move on to plain error review. This one should be easy, right? There was error, and in light of Tapia the error was plain at the plain at the time of appellate consideration.

Wrong:

Tapia established that it is error for a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia, 2011 WL 2369395, at *9. Henderson cannot show that the error in his case was plain, however, because an error is plain only if it “was clear under current law at the time of trial.” United States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008) (emphasis added). At the time of trial, the Supreme Court had not yet decided Tapia and, as we have just explained, we had not yet addressed the question. Where we have not previously addressed a question, any error cannot be plain.

(second emphasis added). That strikes me as an incorrect approach to the plainness prong, but the court cites authority for that proposition: "See United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (“We conclude that any error by the district court in this regard was not plain or obvious, as we have not previously addressed this issue.” (citing United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994)(en banc)))."

Whether this approach is consistent with the Supreme Court's pronouncments on the plainness prong, or even Fifth Circuit precedent, perhaps the more important takeaway is: PRESERVE!

Monday, July 11, 2011

Fives to Rehear Sufficiency Win En Banc

A nice sufficiency win from earlier this year, United States v. Delgado, will be reheard en banc. Presumably this was prompted by the criticism in Judge Clement's dissent from the panel ruling. She faulted the majority for addressing the sufficiency issue sua sponte, and criticized what she described as the majority's expansion of the buyer-seller exception to conspiracy liability and its misapplication of the cumulative error doctrine.